[50] There was no evidence that, from the outset, she would
have “a right to determine the beneficiary of the Policy”, as the
application judge observed. What would the insurer have done
had she purported to file a designation of someone as a beneficiary? Could she herself, for example, have designated someone
from her family as a revocable, or even an irrevocable, beneficiary under the policy in her stead? At any time? With or
without Mr. Moore’s permission? We do not know the answers
to such questions because no evidence was led directed to this
issue.

[51] An assignment involves the transfer of a proprietary
right, including a right of action. As noted above, although there
is no particular form required for an equitable assignment, it is
essential that there be sufficiently clear evidence to establish the
intention of the assignor to make such an assignment, that is, to
establish that the assignor clearly intended the contractual right
to become the property right of the assignee: see Nadeau, at para.
19. The application judge did not direct his mind to the question
of Mr. Moore’s intention, however. He seems to have leaped
directly from the fact there was an oral agreement that if
Ms. Moore continued the payments she would continue as
a beneficiary, to the conclusion that Mr. Moore intended to
make an absolute assignment of the property in the policy or its
proceeds. There is little, if any, other evidence to support such
an intention.

[52] A further example may assist in highlighting the frailty
in making the direct analytical jump in terms of whether
Mr. Moore had the necessary intention to make an assignment.
Suppose that, in breach of the oral agreement, Ms. Moore paid
no premium, or stopped after paying one or two; and assume the
children still needed and were entitled to support at that point.
Mr. Moore would have been faced with two options in such
an event, assuming he assigned his rights as the application
judge found.

[53] First, he could continue to pay premiums in order to keep
the policy alive, but if he died Ms. Moore would receive the proceeds even though she was in breach of the agreement. Would
Mr. Moore have said “but of course I accept that would be the
case” if he had been asked that question at the time the agreement was made?

[54] Second, he could let the policy lapse, in which case the
children would be deprived of the protection they would have in
the event of his death. Would he have accepted such a turn of
events if asked during the discussion leading up to the oral
agreement? We do not know the answers to these questions